Walton v The Scottish Ministers, 2012 UKSC 44
Citation:Walton v The Scottish Ministers, 2012 UKSC 44
Rule of thumb 1:When do environmental impact assessments have to be carried out and when can they stop a new development? Only in big planning applications, and even then they do not have to be perfect, rather there just to be no major adverse impact on the environment rather than it being a perfect development as such. These can only stop a development going ahead if there is a clear & serious environmental concern and not a minor one.
Rule of thumb 2:Is English planning law and Scottish planning law the same? Generally speaking yes, the Court held that generally Scottish practice should be the same as south of the border subject to exceptions where there are clearly different statutes or regulations in place or indeed unique circumstances.
Background facts:
The basic facts of this case were that a new road bypass was being planned for Aberdeen.
Parties argued:
It was argued that the ‘Strategic environmental assessment’ was not carried out properly.
Judgment:
The Court held that environmental impact assessments did not have to be carried in every single planning application - these only had to be carried out when it was expressly said so in statute and where there was a clear potential danger to health – this was not deemed to be the type of matter which required this. It was further stated that even if a few minor parts of an environmental impact assessment were not followed this would not necessarily lead to the assessment being quashed with it ordered to be re-started – the report and the process as a whole had to be considered. The Court affirmed that environmental matters are people not taking care of the environment is a concern for everyone and this is a ground which should be taken seriously, but they can only intervene where there are clear & serious errors. The Court further affirmed that being in breach of one point of a statute or one environmental improvement was not necessarily enough to bring a successful judicial review case and it did not void the whole process.
The Court also explained who can raise these types of Judicial Review actions. A person can raise a Court action if they have been aggrieved – there does not necessarily have to be clear financial loss or damages sustained in order to raise a Court. The Court set the test is that someone who falls into the category of being a ‘busybody’ cannot raise a claim, and if a person falls into this category then they should not be allowed to raise a clai. Where there is an interest group or a person who has made a complaint then this will further suggest that they are genuinely aggrieved. The Court also affirmed that standing to get a Court in Scotland & England should be the same for the most part.
Ratio-decidendi:
“even if…breach of the SEA Directive were a ground of challenge under the 1984 Act procedure, the court would retain a discretion to refuse relief on similar grounds to those available under domestic law”, Lord Carnwath.
“ ... seem to be contrary to the purpose of environmental law, which proceeds on the basis that the quality of the natural environment is of legitimate concern to everyone”, Lord Hope
“even if…breach of the SEA Directive were a ground of challenge under the 1984 Act procedure, the court would retain a discretion to refuse relief on similar grounds to those available under domestic law”, Lord Carnwath
‘An aggrieved person will have standing... persons will ordinarily be regarded as aggrieved if they made objections or representations as part of the procedure which preceded the decision challenge, and their complaint is that the decision was not properly made... the mere busybody and the person affected by or having a reasonable concern in the matter to which the application relate... the rule of law would not be maintained if, because everyone was equally affected by an unlawful act, no-one was able to bring proceedings to challenge it... (Scottish practice on these matters) ... is, or should be, in line with that south of the border”. Lord Reed.
“Scottish practice... is, or should be, in line with that south of the border”, Lord Carnwath
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.